|
<<previous | index | next>> “Command Influence” and Military Defense CounselUnder existing U.S. military law, military defense counsel are protected by various means from undue command interference in representing clients. Crucial is the requirement that they report to a defense counsel chain of command that is distinct from the normal military chain of command, and serves to distance defense lawyers from senior military or Defense Department officials. Additionally, Article 37 of the Uniform Code of Military Justice prohibits command influence in the judicial process by superior officers.43 This article effectively prevents a convening authority or other commanding officer from pressuring defense counsel in cases before military tribunals. However, under the military commission rules, military defense lawyers remain directly in the military chain of command.44 They report to the Chief Defense Counsel who does not incur any confidentiality obligations.45 He in turn reports to a Deputy General Counsel who reports to the Defense Department General Counsel (a political appointee who reports to the Secretary of Defense).46 These officials are responsible for supervising and preparing fitness and performance evaluation reports.47 Even without any overt pressure, this command structure could significantly affect the work of military defense counsel. For instance, anything a military defense lawyer tells a superior officer, such as regarding an ethical issue, could be communicated up the chain of command. This chain of command will limit a superior officer’s ability to assist subordinate military defense counsel and complicate matters in the event of disciplinary hearings, despite the provisions in the military tribunal rules to protect defense counsel. [43] UCMJ, art. 37 on “Unlawfully influencing action of court,” states: (a) No authority convening a general, special, or summary court-martial, nor any other commanding officer, may censure, reprimand, or admonish the court or any member, military judge, or counsel thereof, with respect to the findings or sentence adjudged by the court, or with respect to any other exercises of its or his functions in the conduct of the proceedings. No person subject to this chapter may attempt to coerce or, by any unauthorized means, influence the action of a court-martial or any other military tribunal or any member thereof, in reaching the findings or sentence in any case, or the action of any convening, approving, or reviewing authority with respect to his judicial acts. … (b) In the preparation of an effectiveness, fitness, or efficiency report on any other report or document used in whole or in part for the purpose of determining whether a member of the armed forces is qualified to be advanced, in grade, or in determining the assignment or transfer of a member of the armed forces or in determining whether a member of the armed forces should be retained on active duty, no person subject to this chapter may, in preparing any such report (1) consider or evaluate the performance of duty of any such member, as counsel, represented any accused before a court-martial. [44] To date, the Department of Defense has appointed five military lawyers to serve full-time as defense counsel for detainees tried before the military commissions. [45] MCI No. 4, 3(B)(8). [46] See MCI No. 6, 3(B). [47] MCI No. 6, 3(B).
|